Earlier this year the Georgia Supreme Court tossed out a case challenging a law banning most abortions after 20 weeks of pregnancy. While the challenge was rejected, the court also rejected the state of Georgia’s argument that state officials could never be sued in a state constitutional challenge to a law of the state.
According to the court’s ruling, absent state consent, it is true that sovereign immunity protects state officials from being sued in their official capacity when a state constitutional challenge to a law is filed. Court officials could be sued, however, in their individual capacities. The reason why the court dismissed the challenge to the abortion ban law is because the case was filed against state officials in their official capacity.
Sovereign immunity is a legal doctrine that prohibits the government or its political subdivisions, departments, and agencies from being sued by a private party without its consent. The concept stems from the ancient English principle that the monarch – in modern times, the government – can do no wrong. Nonetheless, if a state or local government entity receives federal funding, no matter what the purpose, it cannot claim sovereign immunity if the lawsuit is in federal court for discriminatory acts.
Under the state’s abortion ban law, it is a felony to perform most abortions after 20 weeks of gestation. The Georgia law also gives prosecutors access to abortion patients’ medical records. Three obstetricians filed the lawsuit, claiming the law violated the state constitutional rights to privacy and due process.
According to proponents of the law, Georgia’s 20-week ban is unconstitutional because it violates laws and restrictions set by prior cases, specifically Roe v. Wade and Pennsylvania v. Casey. Under Roe, abortion was legalized in the first trimester. Then Casey came along, establishing the state cannot ban abortion until the fetus has reached the age of viability, when the fetus can survive outside of the mother’s womb, which is about 24 to 28 weeks. Proponents also allege that the law violates the Fourth Amendment’s Right to Privacy doctrine, which governs how far the government can intrude into an individual’s privacy.
The decision by the court made it clear that while the lawsuit was dismissed, the legal dispute is far from over. The case was reported by several news agencies, including the Atlanta Journal-Constitution, the Daily Report and the Associated Press.
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